Panel Says U.S., Having Twice Failed to Prove Indonesian Muslim
Group Used Weapons, Cannot Try Again

By a MetNews
Staff Writer

A suspected
supporter of an Indonesian terrorist group cannot be denied withholding of
removal on that ground, the Ninth U.S. Circuit Court of Appeals ruled
yesterday.

A
divided panel said the government had failed twice in its efforts to prove that
Jemaah Muslim Attaqwa is a terrorist organization, and declined to order a
remand so that it can make another attempt. A dissenting judge said remand
would be appropriate because there was at least minimal evidence to support the
government’s position.

The
petitioner, identified by the single name Budiono, entered the country as a
nonimmigrant visitor in 2000 and stayed after his visa expired. The Department
of Homeland Security initiated removal proceedings in 2003, and he applied for
asylum and related relief.

He
testified at his removal hearing that he joined the Jakarta-based group as a
teenager around 1990, and that it was a volunteer service organization. He said
he turned away from the group when it became intolerant of non-Muslims and
participated in anti-government riots.

Budiono
further claimed that he left the group because of this turn, and that members
retaliated by beating him in his home and sexually assaulting his wife. Police
refused to treat this conduct as criminal, and subsequently arrested him on
what he said were false charges of mismanaging funds belonging to the group, he
said.

He
was only released after his wife paid a bribe equal to about two months’
salary. The couple then moved several hours away from Jakarta, but he was
unable to find work and came to the United States.

Budiono
said he had planned to return to Indonesia, but learned in 2003 that a friend
had been killed by a radical Muslim group, and that he feared for his own safety
if he went back, even though the group that killed his friend was not tied to
Jemaah Muslim Attaqwa.

Credible, but
Ineligible

The
immigration judge found him credible, but found that he was not eligible for
asylum because he did not request it within one year of his arrival, and that
he did not prove a fear of persecution. The IJ further found that even if he
had a presumed or proven fear of persecution, he was subject to the statutory
bar of relief for persons who have given material support to a terrorist
organization.

The
Board of Immigration Appeals reversed in 2008, concluding that he proved he had
been persecuted for his religious beliefs, and that there was insufficient
proof that Jemaah Muslim Attaqwa was a terrorist group. The case was remanded
for further factfinding; the second IJ held that Budiono had a well-founded
fear of persecution, and that relocation within Indonesia was not a reasonable
alternative to remaining in the United States, but that he was barred from
withholding of removal because he had given material support to a terrorist
organization.

The
BIA upheld the decision.

Senior
Judge A. Wallace Tashima, writing for the panel yesterday, agreed that the
petitioner’s request for asylum was time-barred, rejecting the argument that
the death of his friend was a significant change of circumstances that would
qualify for an exception to the one-year limitation.

But
Tashima went on to say that the IJ’s findings of fact were inadequate to
establish that the terrorism bar applied.

In order
for the bar to apply, the jurist noted, the immigration law requires a finding
that the group used “any . . . explosive, firearm, or other weapon or dangerous
device (other than for mere personal monetary gain), with intent to endanger,
directly or indirectly, the safety of one or more individuals or to cause
substantial damage to property.”

‘Apparently
Unknown’

Pointing
out that the case involves a group that “is apparently unknown to the U.S.
government,” Tashima said the only evidence of its activities came from the
testimony of Budiono and his wife, neither of whom mentioned any weapons.

He
rejected the government’s argument that use of weapons could be inferred from
the involvement of some members of the group in the 1998 Jakarta riots. News
accounts said that mass violence broke out after student demonstrators were
killed by police, and that hundreds of people were killed in fires after
commercial buildings were barricaded and torched, but Tashima said there was no
testimony before the IJ that Jemaah Muslim Attaqwa members used weapons during
the riots.

Previous
cases upholding the application of the terrorism bar have involved much
stronger evidence, he said.

Judge
Harry Pregerson concurred in the opinion, but Judge Consuelo Callahan said the
government presented sufficient circumstantial evidence, “under a deferential
standard of review,” to support Budiono’s removal, or at least another remand.

By
holding the government to a higher burden, she said, “the majority improperly
inflated the government’s initial burden, and that even if she agreed with that
standard, the appropriate remedy in this case is remand to the Board.”

The
appeal was argued by Armin A. Skalmowski for the petitioner and Daniel I.
Smulow for the government.